Citation Nr: 0812709
Decision Date: 04/17/08 Archive Date: 05/01/08
DOCKET NO. 04-38 155A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a back disorder.
2. Entitlement to service connection for residuals of a
collapsed lung.
3. Entitlement to a compensable evaluation for residuals of
a fractured distal left fibular shaft.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The appellant and his wife
ATTORNEY FOR THE BOARD
Jessica J. Wills, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1968 to August
1970.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a February 2004 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida, which denied the benefits sought
on appeal. The veteran appealed that decision to BVA, and
the case was referred to the Board for appellate review.
A hearing was held on January 11, 2008, in St. Petersburg,
Florida, before the undersigned, who was designated by the
Chairman to conduct the hearing pursuant to 38 U.S.C.A. §
7107(c), (e)(2) and who is rendering the determination in
this case. A transcript of the hearing testimony is in the
claims file. Further, the Board received additional evidence
from the appellant subsequent to the hearing. He also
submitted a waiver of initial RO review of the new evidence.
The evidence will therefore be considered in this decision.
38 C.F.R. § 20.1304 (2007).
The Board also observes that the veteran's appeal had
originally included the issues of entitlement to service
connection for asbestos exposure, hepatitis B, and hepatitis
C. However, in his October 2004 VA Form 9, the veteran
stated that he was only appealing the issues of entitlement
to service connection for a back disorder and residuals of a
collapsed lung and for an increased evaluated for his
residuals of a fractured distal left fibular shaft. As such,
the veteran has not filed a substantive appeal for the other
issues. See 38 C.F.R. § 20.202. Accordingly, the issues of
entitlement to service connection for asbestos exposure,
hepatitis B, and hepatitis C no longer remain in appellate
status and no further consideration is required.
The issues of entitlement to service connection for a back
disorder and to an increased evaluation for residuals of a
fractured distal left fibular shaft will be addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC. Washington, DC.
FINDING OF FACT
The veteran has not been shown to currently have residuals of
a collapsed lung that are causally or etiologically related
to his military service.
CONCLUSION OF LAW
Residuals of a collapsed lung were not incurred in active
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102,
3.303 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Upon receipt of a substantially complete application for
benefits, VA must notify the claimant what information or
evidence is needed in order to substantiate the claim and it
must assist the claimant by making reasonable efforts to get
the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R.
§ 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The notice required must be provided to the claimant
before the initial unfavorable decision on a claim for VA
benefits, and it must (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R.
§ 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120
(2004).
In this case, the RO did provide the appellant with notice in
August 2003 and September 2003, prior to the initial decision
on the claim in February 2004, as well as in May 2004 and
December 2007. Therefore, the timing requirement of the
notice as set forth in Pelegrini has been met in connection
with the claim and to decide the appeal would not be
prejudicial to the claimant.
Moreover, the requirements with respect to the content of the
notice were met in this case. The RO informed the veteran in
the notice letters about the information and evidence that is
necessary to substantiate his claim for service connection.
Specifically, the August 2003, September 2003, and May 2004
letters indicated that the evidence must show that the
veteran had an injury in military service or a disease that
began in, or was made worse during military service, or that
there was an event in service that caused injury or disease;
that he has a current physical or mental disability; and,
that there is a relationship between his current disability
and an injury, disease, or event in military service.
Additionally, the September 2004 statement of the case (SOC)
notified the veteran of the reasons for the denial of his
application and, in so doing, informed him of the evidence
that was needed to substantiate his claim.
In addition, the RO notified the veteran in the notice
letters about the information and evidence that VA will seek
to provide. In particular, the August 2003, September 2003,
and May 2004 letters indicated that reasonable efforts would
be made to help him obtain evidence necessary to support his
claim, including that that VA was requesting all records held
by Federal agencies, such as service medical records,
military records, and VA medical records. The veteran was
also informed that a medical examination would be provided or
that a medical opinion would be obtained if it was determined
that such evidence was necessary to make a decision on his
claim.
The RO also informed the veteran about the information and
evidence that he was expected to provide. Specifically, the
August 2003, September 2003, and May 2004 letters notified
the veteran that he must provide enough information about his
records so that they could be requested from the agency or
person that has them. The August 2003 and May 2004 letters
also requested that he complete and return the enclosed VA
Form 21-4142, Authorization and Consent to Release
Information to the Department of Veterans Affairs, if there
were any private medical records that he would like VA to
obtain on his behalf. In addition, the August 2003,
September 2003, and May 2004 letters informed the veteran
that it was his responsibility to ensure that VA receives all
requested records that are not in the possession of a Federal
department or agency
Finally, the May 2004 letter specifically notified the
claimant that he should provide any evidence or information
in his possession that pertains to the claim. Because each
of the four notice requirements has been fully satisfied in
this case, any error in not providing a single notice to the
appellant covering all the requirements is harmless error.
Further, during the pendency of this appeal, on March 3,
2006, the United States Court of Appeals for Veterans Claims
(Court) issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above,
which held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
In the present appeal, the veteran was provided with notice
of the type of evidence necessary to establish a disability
rating and effective date for the disability on appeal. In
this regard, the Board notes that the December 2007 letter
informed him that a disability rating was assigned when a
disability was determined to be service-connected and that
such a rating could be changed if there were changes in his
condition. The letter also explained how disability ratings
and effective dates were determined.
In addition, the duty to assist the veteran has also been
satisfied in this case. The veteran's service medical
records as well as all available VA and private medical
records pertinent to the years after service are in the
claims file and were reviewed by both the RO and the Board in
connection with the veteran's claims. The veteran was also
was provided the opportunity to testify at a hearing before
the Board.
The Board does observe that the veteran has not been afforded
a VA examination in connection with his claim for service
connection for residuals of a collapsed lung. Under the law,
an examination or medical opinion is considered necessary if
the information and evidence of record does not contain
sufficient competent medical evidence to decide the claim,
but (1) contains competent lay or medical evidence of a
current diagnosed disability or persistent or recurrent
symptoms of disability; (2) establishes that the veteran
suffered an event, injury, or disease in service; and (3)
indicates that the claimed disability or symptoms may be
associated with the established event, injury, or disease in
service or with another service-connected disability. 38
C.F.R. § 3.159(c)(4).
In this case, a VA examination is unnecessary to decide this
claim for service connection because such an examination
would not provide any more information than is already
associated with the claims file. As will be discussed in
greater detail below, while there is ample evidence that the
veteran was involved in a motor vehicle accident, he has not
presented evidence that he sustained any type of injury
(collapse) of the lung. He also failed to submit any
evidence showing continuity of treatment of a lung disorder
or competent evidence relating an event, disease, or injury
in service to the current residuals of a collapsed lung. The
Board therefore finds that a VA examination is unnecessary.
38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet.
App. 512, 517 (2004), citing Paralyzed Veterans of Am. V.
Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir.
2003) (noting that a medical examination conducted in
connection with claim development could not aid in
substantiating a claim when the record does not already
contain evidence of an inservice event, injury, or disease).
VA has further assisted the veteran and his representative
throughout the course of this appeal by providing them with a
SOC, which informed them of the laws and regulations relevant
to the veteran's claim. For these reasons, the Board
concludes that VA has fulfilled the duty to assist the
veteran in this case.
Law and Analysis
The veteran asserts that he currently suffers from the
residuals of an injury to his left lung. He contends that he
sustained a collapsed lung as the result on an October 1969
in-service motor vehicle accident.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110, 1131. That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
In order to prevail on the issue of service connection on the
merits, there must be medical evidence of (1) a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
In considering the evidence of record under the laws and
regulations as set forth above, the Board concludes that the
veteran is not entitled to service connection for residuals
of a collapsed lung. Service medical records show that the
veteran was involved in a motor vehicle accident in October
1969, which resulted in multiple injuries including a small
laceration anterior to his sternum. Treatment records for
this period showed that he complained of left flank muscle
and rib pain. There was no indication that his lung was
injured. A contemporaneous x-ray was negative. The Board
also notes that the veteran sustained a laceration injury to
his chest from a knife in April 1969. There were again no
findings with regard to a lung injury. Indeed, his service
medical records are negative for any complaints, treatment,
or diagnosis of a collapsed lung or any other lung disorder.
Moreover, the medical evidence of record does not show that
the veteran sought treatment for his lungs immediately
following his period of service or for many decades
thereafter.
With regard to the decades-long evidentiary gap in this case
between active service and the earliest manifestations of a
lung disorder, the Board notes that this absence of evidence
constitutes negative evidence tending to disprove the claim
that the veteran had an injury or disease in service which
resulted in chronic disability or persistent symptoms
thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998),
aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed.
Cir. 2002) (noting that the definition of evidence
encompasses "negative evidence" which tends to disprove the
existence of an alleged fact); see also 38 C.F.R. § 3.102
(noting that reasonable doubt exists because of an
approximate balance of positive and "negative" evidence).
The Board also notes that the veteran made no reference to
the residuals of a lung injury when he filed his original
claim for compensation in June 1972. Indeed, the first
documented evidence of complaints of a respiratory/lung
disability is not until 2002. Thus, the lack of any
objective evidence of continuing complaints, symptoms, or
findings for many years between the period of active duty and
the first symptoms of a lung disorder is itself evidence
which tends to show that the disorder did not have their
onset in service or for many years thereafter.
A prolonged period without medical complaint can be
considered, along with other factors concerning a claimant's
health and medical treatment during and after military
service, as evidence of whether an injury or a disease was
incurred in service which resulted in any chronic or
persistent disability. See Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000). The Board must consider all the
evidence including the availability of medical records, the
nature and course of the disease or disability, the amount of
time that elapsed since military service, and any other
relevant facts in considering a claim for service connection.
Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir.
2000) (holding that the absence of medical records during
combat conditions does not establish absence of disability
and thus suggesting that the absence of medical evidence may
establish the absence of disability in other circumstances).
Thus, when appropriate, the Board may consider the absence of
evidence when engaging in a fact finding role. See Jordan v.
Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing
separately) (noting that the absence of evidence may be
considered as one factor in rebutting the aggravation part of
the section 1111 presumption of soundness).
In addition to the lack of evidence showing that residuals of
a collapsed lung and/or lung injury manifested during service
or within close proximity thereto, the medical evidence of
record does not link a current disorder to his military
service. As noted above, the medical evidence does not show
that there was an event, disease, or injury in service to
which a current disorder could be related. See 38 C.F.R.
§ 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512,
517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of
Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003)
(noting that a medical examination conducted in connection
with claim development could not aid in substantiating a
claim when the record does not already contain evidence of an
in-service event, injury, or disease). Nor is there is any
medical evidence of record that links any current disorder to
a disease or injury in service. In fact, there is no medical
evidence showing that the veteran has ever had a collapsed
lung.
With respect to the veteran's own contentions, a layperson is
generally not capable of opining on matters requiring medical
knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997).
See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing
Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson
without the appropriate medical training and expertise is not
competent to provide a probative opinion on a medical matter,
to include a diagnosis of a specific disability and a
determination of the origins of a specific disorder). Lay
testimony is competent, however, to establish the presence of
observable symptomatology and "may provide sufficient
support for a claim of service connection." Layno v. Brown,
6 Vet. App. 465, 469 (1994).
When a condition may be diagnosed by its unique and readily
identifiable features, the presence of the disorder is not a
determination "medical in nature" and is capable of lay
observation. In such cases, the Board is within its province
to weigh that testimony and to make a credibility
determination as to whether that evidence supports a finding
of service incurrence and continuity of symptomatology
sufficient to establish service connection. See Barr v.
Nicholson, 21 Vet. App. 303 (2007).
Lay evidence can be competent and sufficient to establish a
diagnosis of a condition when (1) a layperson is competent to
identify the medical condition, (2) the layperson is
reporting a contemporaneous medical diagnosis, or (3) lay
testimony describing symptoms at the time supports a later
diagnosis by a medical professional. Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007).
Unlike varicose veins under Barr, a dislocated shoulder under
Jandreau, a disorder that was indicated in the medical record
to exist years after service, or a finding that one disorder
is related to another disorder, is not a condition capable of
lay diagnosis. See Woehlaert v. Nicholson, 21 Vet. App. 456
(2007). Here, while the veteran is clearly competent to
state that his ribs and chest were painful subsequent to the
October 1969 motor vehicle accident, he is clearly not
competent to diagnosis himself as having sustained a
collapsed lung. In any event, the Board finds that the
veteran's lay statements are outweighed by the service
medical, which are clearly negative for evidence of a
collapsed lung, and post-service treatment records indicating
a disorder that began years after service. The Board again
finds it to be particularly significant the veteran first
filed a claim for service connection for a lung disorder in
July 2003, over three decades after leaving service. See
Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay
in asserting a claim can constitute negative evidence that
weighs against the claim).
The Board therefore finds that the preponderance of the
evidence is against the veteran's claim for service
connection for residuals of a collapsed lung. Because the
preponderance of the evidence is against the veteran's claim,
the benefit of the doubt provision does not apply.
Accordingly, the Board concludes that service connection for
residuals of a collapsed lung is not warranted.
ORDER
Service connection for residuals of a collapsed lung is
denied.
REMAND
Reason for remand: To provide the veteran with proper notice
and to afford him VA examinations.
The law provides that VA shall make reasonable efforts to
notify a claimant of the evidence necessary to substantiate a
claim and requires VA to assist a claimant in obtaining that
evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R.
§ 3.159 (2007). Such assistance includes providing the
claimant a medical examination or obtaining a medical opinion
when such an examination or opinion is necessary to make a
decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West
2002); 38 C.F.R. § 3.159 (2007).
During the pendency of the appeal, the Court issued a
decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008),
which held that for an increased-compensation claim, section
§ 5103(a) requires, at a minimum, that the Secretary notify
the claimant that, to substantiate a claim, the claimant must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life. Further, if the
Diagnostic Code under which the claimant is rated contains
criteria necessary for entitlement to a higher disability
rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life. As with
proper notice for an initial disability rating and consistent
with the statutory and regulatory history, the notice must
also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask the Secretary
to obtain) that are relevant to establishing entitlement to
increased compensation, e.g. competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability. Vazquez-Flores, slip op. at 5-6. However, in
this case, the Board notes that the veteran has not been
adequately provided such notice, and thus, the case must also
be remanded for proper notice pursuant to Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008).
The Board also notes that the veteran was afforded a VA
examination in November 2003 in connection with his claim for
an increased evaluation for his residuals of a fractured left
distal fibular shaft. However, at a January 2008 hearing
before the Board, the veteran and his wife claimed that the
disability had worsened since his last examination. VA's
General Counsel has indicated that when a claimant asserts
that the severity of a disability has increased since the
most recent rating examination, an additional examination is
appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also
Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown,
6 Vet. App. 377 (1994). Therefore, the Board finds that a
more recent VA examination is in order in this case for the
purpose of ascertaining the severity and manifestations of
the veteran's service-connected residuals of a fractured left
distal fibular shaft.
In addition, the Board notes that the veteran has not been
afforded a VA examination in connection with his claim for
service connection for a back disorder. The veteran's
service medical records do indicate that he had complaints of
back pain following a car accident in October 1969. In
addition, VA medical records dated from February 2002 to
January 2006 document the veteran as having chronic back
pain, minimal degenerative joint disease, and disc narrowing
at L5-S1. However, the evidence of record does not include a
medical opinion discussing whether the veteran has any
current back disorder that is causally or etiologically
related to his military service. Therefore, the Board finds
that a VA examination is necessary to determine the nature
and etiology of any back disorder that may be present.
Therefore, in order to give the veteran every consideration
with respect to the present appeal and to ensure due process,
it is the Board's opinion that further development of the
case is necessary. Accordingly, the case is REMANDED for the
following actions:
1. The RO should send the veteran a
notice letter in connection with his
claim for an increased evaluation for
residuals of a fractured distal left
fibular shaft. The letter should inform
him of the information and evidence that
is necessary to substantiate the claim;
(2) inform him about the information and
evidence that VA will seek to provide;
(3) inform him about the information and
evidence he is expected to provide; and
(4) ask him to provide any evidence in
his possession that pertains to the
claim.
The letter should also include an
explanation as to the information or
evidence needed to establish a
disability rating and an effective date,
as outlined by the Court in
Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
In addition, the letter should tell the
claimant to provide medical or lay
evidence demonstrating a worsening or
increase in severity of the disability
and the effect that worsening has on the
claimant's employment and daily life.
If the Diagnostic Code under which the
claimant is rated contains criteria
necessary for entitlement to a higher
disability rating that would not be
satisfied by the claimant demonstrating
a noticeable worsening or increase in
severity of the disability and the
effect that worsening has on the
claimant's employment and daily life
(such as a specific measurement or test
result), the RO should provide at least
general notice of that requirement to
the claimant. Additionally, the
claimant must be notified that, should
an increase in disability be found, a
disability rating will be determined by
applying relevant Diagnostic Codes,
which typically provide for a range in
severity of a particular disability from
noncompensable to as much as 100 percent
based on the nature of the symptoms of
the condition for which disability
compensation is being sought, their
severity and duration, and their impact
upon employment and daily life. The
notice must also provide examples of the
types of medical and lay evidence that
the claimant may submit (or ask the
Secretary to obtain) that are relevant
to establishing entitlement to increased
compensation. See Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008).
2. The veteran should be afforded a VA
examination to ascertain the severity
and manifestations of his service-
connected residuals of a fractured
distal left fibular shaft. Any and all
studies, tests, and evaluations deemed
necessary by the examiner should be
performed. The examiner is requested to
review all pertinent records associated
with the claims file and to comment on
the severity of the veteran's service-
connected residuals of a fractured
distal left fibular shaft. The examiner
should report all signs and symptoms
necessary for rating the veteran's
disability under the rating criteria.
In particular, the examiner should
comment as to whether there is malunion
or nonunion of tibia and fibula and, if
there is malunion, whether there is
marked, moderate, or slight impairment
of the ankle or knee. The presence of
objective evidence of pain, excess
fatigability, incoordination, and
weakness should also be noted, as should
any additional disability due to these
factors.
A clear rationale for all opinions would
be helpful and a discussion of the facts
and medical principles involved would be
of considerable assistance to the Board.
Since it is important "that each
disability be viewed in relation to its
history [,]" 38 C.F.R. § 4.1 (2007),
copies of all pertinent records in the
appellant's claims file, or in the
alternative, the claims file, must be
made available to the examiner for
review.
3. The veteran should be afforded a VA
examination to determine the nature and
etiology of any back disorder that may
be present. Any and all studies, tests,
and evaluations deemed necessary by the
examiner should be performed. The
examiner is requested to review all
pertinent records associated with the
claims file, including the veteran's
service medical records, and to identify
any current back disorder that is
present. The examiner should note that
pain alone, without a diagnosed related
medical condition, does not constitute a
disability for which service connection
may be granted. The examiner should
comment as to whether there is a 50
percent probability or greater that any
identified back disorder is causally or
etiologically related to his
symptomatology in service or is
otherwise related to service.
A clear rationale for all opinions would
be helpful and a discussion of the facts
and medical principles involved would be
of considerable assistance to the Board.
Since it is important "that each
disability be viewed in relation to its
history [,]" 38 C.F.R. § 4.1 (2006),
copies of all pertinent records in the
appellant's claims file, or in the
alternative, the claims file, must be
made available to the examiner for
review.
3. When the development requested has
been completed, the case should be
reviewed by the RO on the basis of
additional evidence. If the benefit
sought is not granted, the veteran and
his representative should be furnished a
Supplemental Statement of the Case and be
afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The appellant has the right to submit
additional evidence and/or argument on the matter or matters
the Board has remanded to the regional office. Kutscherousky
v. West, 12 Vet. App. 369 (1999). No action is required of
the appellant unless he is notified.
_________________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).
Department of Veterans Affairs